Smoke free legislation

Smoke-free legislation was enacted in England on 1st July 2007 (Wales was smoke-free before this date). 

There are minor obligations on landlords in certain dwellings that a landlord manages. 

The first thing to establish is what is and what isn't smoke-free. 

Are Private Dwellings smoke-free? 

No. Premises are smoke-free if they are 

(a) open to the public or 

(b) a place of work [s2 Health Act 2006]. 

Are there certain private dwellings that must be smoke-free? 

England 

Only if the area in a private dwelling is "used in common in relation to more than one set of premises (including premises so used in relation to any other private dwelling or dwellings)" [r3 The Smoke-free (Exemptions and Vehicles) Regulations 2007] in England. 

Wales 

In Wales, the definition is slightly different, but the meanings are the same. 

"3.-(1) A private dwelling is not smoke-free except or any part of it which is - (a) shared with other premises (including any other private dwelling)" [r3 The Smoke-free Premises etc. (Wales) Regulations 2007]. 

Also, if a private dwelling is used "solely" as a place of work, then in certain circumstances, it may be smoke-free. 

What are the obligations of a landlord? 

Because an area used in common is smoke-free, this area becomes "smoke-free premises". In such premises, then:

"It is the duty of any person who occupies or is concerned in the management of smoke-free premises to make sure that no-smoking signs complying with the requirements of section 6 are displayed in those premises in accordance with the requirements of section 6." [s6 Health Act 2006].

In addition, a landlord must stop a tenant from smoking if he sees someone smoking (see below) 

What should the sign look like, what words must be used, and where should it be placed? 

ENGLAND 

The signs are governed by The Smoke-free (Signs) Regulations 2007. Essentially, the following must apply:

... at each entrance to smoke-free premises there shall be displayed in a prominent position at least one no-smoking sign which- 

(a) is at least A5 size; 

(b) displays the no-smoking symbol; and 

(c) contains, in characters that can be easily read by persons using the entrance, the words- " No smoking. It is against the law to smoke in these premises". 

(2) For the words required by sub-paragraph (c) of paragraph (1) there may be substituted words which differ only in that for "these premises" there are substituted words which refer to the particular smoke-free premises in which a sign is displayed (such as "this hotel"). 

[r2]. "no-smoking symbol" means a symbol which consists solely of a graphic representation of a single burning cigarette enclosed in a red circle of at least 70 millimetres in diameter with a red bar across it [r1].

You can download a sign that says, "it is against the law to smoke in the communal area" from here. 

WALES 

The signs are governed by The Smoke-free Premises etc. (Wales) Regulations 2007. Essentially, the following must apply:

5.-(1) For the purposes of section 6 of the Act, any person who occupies or is concerned in the management of smoke-free premises must make sure that no-smoking signs meeting the requirements specified in paragraph (2) are displayed in those premises in accordance with the requirements contained in paragraph (3). 

(2) A no-smoking sign must - 

(a) be flat and rectangular and at least 160 millimetres by 230 millimetres; 

(b) contain a graphic representation of a burning cigarette enclosed in a red circle at least 85 millimetres in diameter with a red bar across the circle which crosses the cigarette symbol; 

(c) contain the following words - "Mae ysmygu yn y fangre hon yn erbyn y gyfraith / It is against the law to smoke in these premises". 

(3) A no-smoking sign complying with the requirements of paragraph (2) must be displayed in a prominent position at or near each entrance to smoke-free premises.

 [r5 The Smoke-free Premises etc. (Wales) Regulations 2007]

A suitable Welsh sign is available from here (Near the page's bottom).

Must a landlord monitor the common areas? 

No. There is no requirement to monitor smoke-free premises. 

If a landlord sees a tenant smoking, must he stop the tenant? 

Yes. Section 8(1) Health Act 2006 states: 

"It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking."

Notice the wording. The person in the smoke-free area must be smoking. It is a defence for a landlord who fails to stop a tenant from smoking on the following grounds:

(5) It is a defence for a person charged with an offence under subsection (4) to show- 

(a) that he took reasonable steps to cause the person in question to stop smoking, or 

(b) that he did not know, and could not reasonably have been expected to know, that the person in question was smoking, or (c) that on other grounds it was reasonable for him not to comply with the duty. 

(6) If a person charged with an offence under this section relies on a defence in subsection (5), and evidence is adduced which is sufficient to raise an issue with respect to that defence, the court must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. 

[Section 8(5) & (6) Health Act 2006]